SAIMA Versus ISMAIL KHAN

This criminal appeal arises from the judgment of learned Senior Special Judge, Anti‑Corruption, Punjab, Lahore whereby he on 11‑5‑1978 convicted Bashir Ahmad appellant under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 3 years' R.I. and a fine of Rs.50,000 in default thereof to further R.I. for two years.

2. The appellant was working asp Store Supervisor in the year 1975. The charge against him was that he by abusing his official position dishonestly misappropriated store items of the value of Rs.50,000 and thereby committed offences punishable under section 409, P.P.C. and section 5(2)47. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined Rana Mazhar Khan, S.E., P.W.1, Muhammad Siddique, Investigating Officer, P.W.2, Muhammad Anwar S.D.O., P.W.3 and Muhammad Arif, S.E., P.W.4. Muhammad Siddique, P.W.2 investigated the case. Rana Mazhar Khan, P.W.1 and Muhammad Anwar P.W.3, stated that they inspected the store and on checking found shortage of the items of the value of Rs.50,000. The statement of P.W.4 is of formal nature

4. When examined under section 342, Cr.P.C. the appellant denied the charge and produced Muhammad Younas D.W.1 in defence, who stated that the appellant was on leave and that he returned on 2‑10‑1975. He checked the store and found various items having been stolen away.

5. The learned counsel for the appellant submits that the prosecution has failed to prove the main ingredients of offence of criminal mis appropriation, i.e. entrustment to and misappropriation of the items by the appellant.

Conversely, the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I find that in the instant case, the prosecution did not care to prove entrustment of the items to the appellant, that there is no evidence of removal of the items by the appellant from the store; that there is no evidence of misappropriation of the same by the appellant; that the prosecution evidence at the most shows that there A was shortage of items of the value of Rs.50,000 which, to my mind, does not prove the commission of criminal misappropriation by the appellant and that the appellant remained on leave before 2‑10‑1975 and on his return, he submitted his report to the S.D.O., to the effect that the items were found stolen from the store.

7. For what has been stated above, I am of the view that the prosecution has failed to prove beyond reasonable doubt commission of an offence punishable under section 409, P.P.C. against the appellant. Giving him the benefit of doubt, he is acquitted of the charge.

M.Y.H. Appeal accepted.